Humility, dissent and community: Exploring Chief Justice Langa’s political and judicial philosophy

• Jurisdiction: South Africa
• Pages: 88-119
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2015 Acta Juridica 88
• Author: David Bilchitz

Humility, dissent and community:

Exploring Chief Justice Langa’s political

and judicial philosophy

DAVID BILCHITZ*

This paper explores key features of Justice Langa’s political and judicial

philosophy through examining the important value he placed on disagree-

ment and dissent. I begin by considering the controversy which erupted

surrounding the comments made by the President of South Africa, Jacob

Zuma about the practice of judicial dissent. Underlying these comments are

specif‌ic assumptions concerning the law, adjudication and, in particular, the

nature of a political community. I seek to draw from the writings of Justice

Langa concerning dissent and constitutional democracy more generally for

responses to these comments, which in turn outline a political community and

the judiciary’s role within it that has deep roots in African philosophy. Langa

emphasised the need for humility in the face of human fallibility: in light of

this, he argued for the importance of respecting and preserving diverse voices

in law and society that would be in a continuing conversation over time about

how to improve society. I then consider some of the key themes on which

Justice Langa felt impelled to write dissenting judgments. These include an

emphasis on the history of South Africa, substantive equality,the regulation of

private power and the accountability and fairness of public power. This

analysis helps us to understand in more detail the kind of polity Langa believed

we should be forming. South Africa should be a community that provides a

space for diverse individual identities to f‌lourish. Dissent will be a vital part of

such a society, being recognised not as a problem but as part of the richness of

our diversity which emphasises the need for openness and f‌lexibility in our

joint quest – across many conversations – to attain a more just society.

I INTRODUCTION: ATRIBUTE TO JUSTICE LANGA AND

THE IMPORTANCE OF DISSENT

It was a great privilege to work for Justice Langa as a law clerk in 2000, the

year after graduating from law school. This was indeed a remarkable

opportunity: to engage with someone who exuded a sense of wisdom,

* Professor of Law, University of Johannesburg; Director of the SouthAfrican Institute for

Advanced Constitutional, Public, Human Rights and International Law; BA (Hons) LLB

(Witwatersrand) MPhil PhD (Cantab). I would like to thank Mr Michael Dafel (Researcher,

SAIFAC)for excellent research assistance in the preparation of this article and for his collection

and updating of the statistics I requested for use in the article. I am also grateful to the two

anonymous referees who provided detailed and nuanced comments that have helped to

improve this article.

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2015 Acta Juridica 88

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deep thoughtfulness and humility. Justice Langa’s approach to clerks (at

least at that time) was rather hands-off: he would ask us for a memoran-

dum on particular cases and allow us to go off and do our research. Before

the hearing of the case, we would then have a discussion about it and he

would read our memorandum. Some colleagues struggled with this

approach; for me, it was rather liberating as it gave me the autonomy to

explore and develop different strands of argumentation without strict

constraints. In meetings, Justice Langa would hear out our thoughts on

the case, and then carefully test out the ideas he was contemplating with

us. He was often quiet and reticent: I realised that these were markers of a

deeply thoughtful man who deliberated and agonised around the diff‌icult

judgments that had to be made. Justice Langa was always respectful to us,

who were after all very junior to him.

I once wrote a very lengthy memo for him articulating a theory on a

particular question before the court: he called me in and said: ‘David, we

only need a paragraph for the judgment – the rest can be for your f‌irst

book!’ As this comment ref‌lects, he had a quirky, sardonic sense of

humour and a twinkle in his eye. Justice Langa had a strong impact on my

life as he accepted me as a law clerk, knowing that I had applied to study

overseas from September that year. When I returned to SouthAfrica after

completing my MPhil in philosophy, I was deeply uncertain whether I

should continue to study for my doctorate. Many of my friends were

already achieving some degree of seniority in law f‌irms and making a

name for themselves at the bar. I was still a student and had not really

commenced my career nor did I feel that I was having any impact on the

pressing questions of social justice in South Africa that I care about so

deeply. I remember putting my dilemma to the judge and he looked at

me, and said slowly and deliberately: ‘David, there is no rush in life: you

are young and the time that you take to study and ref‌lect will be

invaluable. South Africa and your career will wait and when you come

back, you will be of more use to our country and our profession.’ His

answer ref‌lected a deep wisdom ref‌lective of his sage-like qualities. It also

highlighted the continued emphasis he placed throughout his life on the

importance of education. I took his advice and the three years of my PhD

at Cambridge did indeed become an important space of ref‌lection and

development that has helped me in innumerable ways ever since.

I also remember well when he accepted the invitation to give a talk to

the Free Market Foundation. The judge decided to speak in detail about

the importance of social rights even though the forum was likely to be

unsympathetic to these ideas. Justice Langa did not directly challenge the

foundation and its philosophy but through the subject matter of his talk

offered a subtle critique, clearly articulating the limits of the market and

the need for government intervention to address dire poverty at least in

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HUMILITY,DISSENT AND COMMUNITY

© Juta and Company (Pty) Ltd

South Africa. This is a clue to the learned judge, someone who strongly

believed in the law but also the ‘soft’ power of persuasion to bring about

change.

In many ways, Justice Langa’s f‌irst instincts, it seems to me, were to try

and reach consensus with colleagues and to f‌ind a way to work through

disagreement. At the same time, he was not authoritarian nor did he wish

to force his views on anyone else. The oft-remarked personal characteris-

tic of humility meant that he was never overly assertive in his approach;

yet, it also did not mean that he lacked strong convictions or did not seek

actively to advocate for them. Under his leadership, the Constitutional

Court saw the growth of dissenting judgments: of the judgments deliv-

ered under Langa’s leadership as Chief Justice, 27 per cent had at least one

dissent, compared to only 10 per cent under the leadership of Chief

Justice Chaskalson.

1

It is unlikely that Justice Langa would have seen this

statistic as, in any way, ref‌lecting negatively on his leadership. He used the

opportunity of an extra-curial Bram Fisher lecture to make a strong case

for the need for dissent both in society generally and in the judiciary, in

particular.

2

Moreover, he provided a foreword to my own book – which

is critical of the Constitutional Court’s approach to socio-economic rights

– and generously wrote that ‘[a]s a Court, we can only count ourselves

privileged to have warranted such a careful, honest and critical evaluation

of our work.’

3

Interestingly, it is only very rarely that we see him openly articulate his

disagreement with the stance of the majority. I have found f‌ive examples

of clear dissents (where he disagreed with the order as well as the

reasoning)

4

and eight examples where he wrote separate concurring

judgments which either disagreed with the reasoning of the majority or

1

This statistic is itself very interesting to analyse. I shall not focus in this paper on this

question but I believe that the following factors perhaps could help to explain it: the different

stage of South African democracy under Justice Langa and the impression of less need for the

Court to ‘speak with one voice’, differences of personality and temperament between the two

Chief Justices, the different kinds of cases that came ten years into democracy as opposed to

early on, and differing judicial ideologies. The statistics used are suitably updated but draw from

M Bishop, L Chamberlain & S Kazee ‘Twelve-year review of the work of the Constitutional

Court:A statistical analysis’ (2008) 24 SAJHR 354. For a more detailed explanation, see T Roux

‘The Langa Court: Its distinctive character and legacy’in this volume.

2

P Langa ‘The emperor’s new clothes: Bram Fischer and the need for dissent’ (2007) 23

SAJHR 362.

3

D Bilchitz Poverty and Fundamental Rights: The Justif‌ication and Enforcement of Socio-Economic

Rights (2007) vii.

4

These cases are: Du Toit v Minister of Transport2006 (1) SA 297 (CC); AAA Investments v

Micro Finance Regulatory Council 2007 (1) SA 343 (CC); NM v Smith 2007 (5) SA 250 (CC);

Steenkamp NO v Provincial Tender Board of the Eastern Cape 2007 (3) SA 121 (CC); Masiya v

Director of Public Prosecutions 2007 (5) SA 30 (CC). Interestingly, Justice Langa mainly wrote

dissenting judgments once he became Chief Justice (orActing Chief Justice).

90 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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